tv The 11th Hour With Brian Williams MSNBC February 7, 2017 11:00pm-11:31pm PST
executive and judiciary branches played out live this evening in court proceedings nationally televised in the form of a cross-country call. three judges for the ninth u.s. circuit court of appeals heard arguments from both the department of justice and the state of washington, representing the other side. the three judges who heard today's oral arguments were randomly assigned to the case. that's important. senior circuit judge william c. canby, still serving senior level at 85 years of age. he was appointed nearly 40 years ago by president jimmy carter. happens to be the brother-in-law of walter mondale. senior circuit court judge richard r. clifton, based out of hawaii, appointed 15 years ago by president george w. bush and circuit judge michelle t. friedland was appointed just two years ago by president obama, notable because at 44, she is
among the youngest federal judges in the country. the questions from the judges to both sides of the lawyers were at times very tough. here is a sampling, beginning first with the judges questioning a lawyer for the trump administration. >> has the government pointed to any evidence connecting these countries with terrorism? >> these proceedings have been moving very fast. and the strongest point on that is that in 2015 and 2016 both congress and the administration made determinations that these seven countries posed the greatest risk of terrorism. >> is there any reason for us to
think there's a real risk or that circumstances have changed such that there would be a real risk if existing procedures weren't allowed to stay in place while the new administration conducts its review? >> well, the president determined that there was a real risk. that's why the president determined that the best course was a temporary -- it's a short halt in entry for 90 days while these procedures are looked at. and that's understandable. the president comes into office with an obligation to protect the national security of our country. >> i have trouble understanding why we're supposed to infer religious animus when in fact the vast majority of muslims would not be affected as residents of those nations. and where the concern for terrorism with those connected with radical islamic sects is kind of hard to deny. >> your honor, it's very clear that to prove religious discrimination, we do not to clear that this order harms every muslim, we have to prove it is motivated in part to desire to hurt muslims.
>> how do you infer that if the majority number of muslims are unaffected? >> you can infer it from intent evidence. >> back to intent evidence. the lawyers used some of president trump's own past comments to prove their claim that the intent of this executive order is to ban muslims. >> donald j. trump is calling for a complete shut down of muslims coming into this country until we figure out what the hell is going on. >> he said show me the right way
to do it legally. >> the refugee changes you're looking to make, as it relates to persecuted christians. do you see them as a priority here? >> yes. >> do you? >> yes. they've been horribly treated. >> again, all that evidence was cited by counsel. we begin with our veteran correspondent pete williams in our washington bureau. the federal bench is divided into 94 districts and 13 circuits. this was the ninth circuit, as someone said on twitter tonight, they obviously finished ninth. sad. it of course has no bearing on rank. how did the ninth circuit end up in this case and what did we witness tonight? what power will they have in this case? >> so it geography and circumstance. the ninth circuit includes most
of the western states, certainly the states on the pacific coast and you may remember that this lawsuit started with the state of washington. they went to a judge in seattle who issued an order stopping trump administration from enforcing its executive order. when the government wanted to appeal, they went to the circuit court, the next level up, that's why it's before the ninth circuit. the issue is will this imposed by the judge -- when you ask a court to do something, it's your burden to show why. so the federal government had the harder case to make here because they're the ones asking for something. they're the ones asking the court of appeals to lift this stay. while you showed clips from both sides, both side got some pretty pointed questioning, the bulk of the questioning seems to show skepticism of the government's
argument, especially the claim that it's the president's duty, obligation and authority alone to make these decisions about what's terrorism risk and where these rules should apply. >> pete, we've seen just about everything in our time. people are already talking about this on a fast track to the supreme court. what is the chance of that and, yes, let's go there, what is the chance that a 4-4 supreme court is unable to decide this? >> i think the most likely scenario that it goes to the supreme court is if this three-judge panel within the next couple of days and that's when we expect they'll act, they said it wouldn't be today but it would be sometime this week they hope, so if they deny the government's request here and leave the judge's stay in place, if they make it impossible for the government to enforce the trump executive order, then i
think you can be sure that the government -- the federal government will go and ask for the same thing on the supreme court they didn't get in the federal court. it takes five votes to grant a stay of a lower court order. your point is if you've got an ideologically divided court and they decide it on ideological ground, you don't get five votes. there's one other thing to say here. the court today spent a lot of time asking whether the states even had the right to sue in the first place, what the lawyers call standing, whether they had the legal standing. and the state said yes, we do because this order hurts our citizens. there's some legal questions about whether the states can sue on behalf of their citizens in immigration cases. that's one of the technical issues the court had to deal with and the supreme court is very picky about standing. it could be that the supreme court will -- won't give the government what wants for many
reasons, including they don't think it should be there. >> thanks. the prediction is we'll have something perhaps by the end of the week. joining us this evening, alan dershowitz, constitutional scholar, civil liberties lawyer, harvard university professor of law emeritus and with us lee geller, director of the immigration rights project with the aclu. professor dershowitz, to you in miami to start us off, it was said mostly by lay people listening in tonight, it was a like a law school class, that the attorney representing the trump administration got the worst of it. he was a last-minute substitution. there were a lot of long pauses. he didn't have the best outing. can you tell us what you made of who had the better case and what the likelihood is that this court is going to return the world to what the "new york times" called global chaos the day of this executive order?
>> i think it's very low probability that the court will upset it injunction, precisely for the reason you stated, that it would cause chaos and they o would have to again reverse it if they changed their view. i think that the state of washington would win in front of this court. i think it would be a mistake for the government to seek a stay from the supreme court probably won't get it. i think if it went to the supreme court on the merits, the trump team would win. the establishment cause argument is a real stretch. it says congress shall make no law respect ag establishment of religion. the idea of using seven states that the previous administration indicated were terrorist states because they happen to be muslim
states, does not establish christianity or the fact that you say that minority religious people should be protected doesn't establish christianity. go back to the 1940s when we passed the war refugee act, which focused on rescuesing jus from hitler's genocide. it focused on jews because they were the victims. is lap uk -- islamic terrorism in the world. i think the trump will get the most substanceively but they will lose. they need to go back and write one that will survive constitutional attack. >> i agree, i'm not sure the government will necessarily go to the supreme court if they
lose. the argument looked like it would turn in the state of washington's favor. i don't know if i were sitting in the solicitor general's office today i would go to the supreme court. it's very difficult for the supreme court to step in on this kind of short notice. what professor dershowitz said, what they're going to look at is who is going to be harmed more during the pendency of this case? i think its clear there are refugees in real danger abroadoned i'm not sure the administration made the case that the country was going to be in danger by letting people in who had been vetted for months and months by the prior administration. >> professor dershowitz said you know the various chief judges over the years have badly wanted a majority, a unanimous opinion on kiess being closely watched, cases they thought were really beneficial for the public good. what are the chances john roberts could sit down with his
seven colleagues short staffed and make that statement argument? >> well, i think it's possible on the merits ultimately if they were to split the difference and have a compromise verdict, saying the president's order is unconstitutional as it relates to people who have been in the country, who have ties to the country, who are attending university, getting medical treatment but it is constitutional as far as it relates to a family in yemen that has never had any contact with the country and is seeking to have visa for the first time. i think there is as possibility of compromise verdict, and the government kind of suggested that at the end of their oral argument. i think there's a movement toward maybe coming to a resolution here. now, the president could do that himself by changing the order. that would make the most sense and avoid a constitutional crisis.
>> and in your line of work, what if the trump administration wins wins? >> i think the cases will go forward and ultimately the cases need to be briefed more and arguments laid out. i think we're planning on doing that, the state attorneyings are doing that. i think ultimately we'll be able to show there is intent here. i think it was very clear what the president intended and at the end he said, no, no, this is not about religion. i think people in the u.s. will have standing to say, look, there can't be religious discrimination. >> this gets us on to something related and i need a 60-second course in law from you and let me explain.
it's about federal judges. a lot of people found be -- a lot people found is bracing, saying if anything happens, you can blame it on the federal judge. there are 800 federal judges nominated, they are appointed by the president and they serve for life. can you tell people about the importance and standing of a federal judge in american society? >> we are the only country in the world that has checks and balances and separation of power. the judiciary is every bit as
powerful and influence and will the as the presidency. there are three branches of co-equal government. by the way, not only is his sister a federal judge, she's a very good and respected federal judge. i think that the president's statement about so-called judge -- i think the judicial protects itself and defends itself and i think the chief justice and some of the justices will see this as an attack on our system and separation of powers and checks and balances. it is not a smart statement for a president in litigation to make that kind of statement, any more than it was a smart state when the same candidate attacked a judge who had ruled against him because his parents were born in mexico. he's going to have to confront that for the next four years and checks and bms have never been more important in our history than they are now because both houses are controlled by one
party and the presidency is controlled by one party. >> professor, at least u get to be in miami when this is all over. alan dershowitz from miami. >> and up next, why perhaps it seems so important for the president's white house staff to tell us repeatedly hour dangerous this world of ours is. that's when "the 11th hour" continues.
whoever succeeds at a later date. we have to have security in our country. it's common sense. you know, some things are law and i'm all in favor of that. some things are common sense. this is common sense. >> i think what we need to do is to remind people that earth is a very dangerous place these days, that isis is trying to do us harm and the president's commitment is to keep the country safe. part of it is to remind people how prevalent these attacks. >> the president and his spokesman, the earth is a very dangerous place, taking on a question about this case. following by sean spicer from the podium in the briefing room. let's talk about this tonight. we bring in political analyst nicole wallace, contributor long-time radio host, charles sykes and from "usa today." >> it is said a straw man needs
a strawman or two. if you diminish the media, if you diminish -- if you tell people that your popularity is wrong, it take. you use wording at the convention like "i alone can help, can fix this," what happens here? >> you are no longer on the same planet, you hear him talk about planet earth. it no longer the same place where a shiny city on the hill can exist. but what is really interesting,
i mentioned yesterday that i'm just back from revisiting some of my trump voters in pennsylvania, a state that swung for trump and helped deliver him this victory. with his base, it working. that's why they're doing it. but we know a few things about donald trump. that will never be enough. he will always want to be more popular. it's working with his base and they probably have just a couple of shows. maybe they have more than a couple at fox news, sort of accepting their reality. everybody else is pushing and fighting across this network and others. the trump team has the posture they have because among their base, it working. >> charlie, i know this sometimes sounds like a copy of "psychology today" but there's a piece in the "new yorker" that quotes a former department of homeland security physical. the quote is this "trump needs a boogie man but more importantly he needs distraction and a blame
source. in terror he has his bogeyman, and in his press narrative via tweet, he has distraction and in the judiciary has he has a source of blame of why he was right in the beginning. i am fully confident that an attack is exactly what he wants and needs. that's chilling. >> you don't even need to go to the psychological reason for this. this is an administration that needs enemies to play off of. if you -- this has been used by strong men throughout try trial. and o obviously since he's not actually making a lot of progress on a pos turf agenda. -- in order to gin up the support of his base. this helps tremendously. even people who are somewhat skeptical, if you can point out here is a threat or this is somebody that is the other, it going to play --
>> eye can't believe i'm about to say this but i worked for a president on september 11th and when i country is attacked, you don't want to be the leader of your base. you want to be the leader of the whole country. and you need to be. >> because the world is in fact a dangerous place. but this is why the president of the united states suit, you need to target and the public needs to believe you in fact are going after the real dangers this is one of the reasons -- >> and not just your public. anthrax was something that was coming out through the male. when you say it safe to get your mail, the whole public need to believe you. >> yeah, the campaign's over. >> heidi as if on queue i saw a surrogate for drpt on cable
television saying, a, is, the worth is a dangerous plays, b, the pret need to get. but there you have your underpinnings, your reasoning. >> well, the part about this that i think we need to also point out is that the origin of a number of these inaccurate claims that are being made from the podium ands will from the president himself, including this most recent if you look at the claim that somehow the media is covering up this islam being that came from infull wars. the that i am thing goes for this claim that. now that that is being, posed as to where this information is coming from, it makes it even harder, it max that credibility given that we're not even talking about conservative far
right media anymore. we're talking about actual conspiracy web sites, started by alex jones. he's the founder of that info wars web site. >> that's the wep site that claimed that owe burr a and clin. >> yes, among many other of the things that donald trump said throughout the campaign as well. so i think this is going to be really hard for the administration to come back for this. the more that he puts folks likeson spicer out there to defentd of has to they be it's the difficult position he's
justice in. the list of the terror attacks. "usa today" today, my num, went when you pick it aparts the things they were including as acts terrorism were pretty loosely defined. they had a fresh national backpacker because see rebuffed him. this is the type of thing that calls in the credible because of the statements coming from donald trump's mouth. >> we'll take a quick wauz here. >> coming up, the president's not-so-subtle offer to destroy a man's career today. that and other topics with "the 11th hour" continues. asset forfeiture, we got a state senator in texas talking about introducing legislation to require conviction before we could receive that forfeiture money. >> can you believe that? >> i told him the cartel would build a monument to him if he